Rowland v. Tucker

• Decision Date: 08 March 2019
• Docket Number: 2170928
• Parties: Allison ROWLAND v. Richard TUCKER, Mike Gunnells, Henry Scheuer, Mark Wise, and William Kruse, as trustees of the Beasley Spring Acres Neighborhood Improvement Trust
• Court: Alabama Court of Civil Appeals

286 So.3d 713

Allison ROWLAND

v.Richard TUCKER, Mike Gunnells, Henry Scheuer, Mark Wise, and William Kruse, as trustees of the Beasley Spring Acres Neighborhood Improvement Trust

2170928

Court of Civil Appeals of Alabama.

March 8, 2019

Micheal S. Jackson of Webster, Henry, Bradwell, Cohan, Speagle & DeShazo, P.C., Montgomery, for appellant.

Tazewell T. Shepard III and Tazewell T. Shepard IV of Sparkman, Shepard & Morris, P.C., Huntsville, for appellees.

EDWARDS, Judge.

The underlying dispute concerns real property located in an unincorporated area of Madison County referred to as Beasley Spring Acres ("BSA"). Allison Rowland, the owner of parcel 49 of BSA, appeals from a November 16, 2017, order entered by the Madison Circuit Court purporting to enforce a May 1, 2008, judgment entered by that court as to the properties composing BSA. The motion to enforce the May 2008 judgment was filed by Richard Tucker, Mike Gunnells, Henry Scheuer, Mark Wise, and William Kruse, as trustees ("the trustees") of the Beasley Spring Acres Neighborhood Improvement Trust ("the trust").

As hereinafter discussed, the November 2017 order is void. A void order will not support an appeal. Johnson v. Hetzel, 100 So.3d 1056, 1057 (Ala. 2012). Accordingly, we dismiss the appeal.

Facts and Procedural History

In June 2005, Tucker, Kruse, and Scheuer, individually, commenced an action seeking to prevent Hun Es Tu Malade? # 6, LLC, David J. Slyman, Jr., and Todd J. Slyman from developing two parcels of property located in BSA for commercial purposes, specifically from constructing and operating a discount drugstore. See Hun Es Tu Malade? # 16, LLC v. Tucker, 963 So.2d 55 (Ala. 2006).

"The trial court entered a summary judgment in favor of [Tucker, Kruse, and Scheuer], declaring that the two parcels owned by Hun Es Tu Malade and the Slymans were subject to the restrictive covenants found in their respective chains of title. The trial court also declared that [BSA], which had been developed by Clarence Beasley, a common grantor, had been developed pursuant to a common scheme. For these reasons, the trial court permanently enjoined Hun Es Tu Malade from developing its property for commercial purposes ...."

963 So.2d at 57. On appeal, the Alabama Supreme Court affirmed the judgment, agreeing with the circuit court's conclusions that the parcels at issue were part of a common scheme of development and that the parcels were subject to restrictive covenants against commercial development. Id. at 68.

On October 30, 2006, while the appeal in Hun Es Tu Malade was pending in the supreme court, Tucker, Kruse, and Scheuer commenced an action in the circuit court against Hun Es Tu Malade, the Slymans, and Sterling Bank, which was a mortgagee of the property owned by Hun Es Tu Malade ("the 2006 action").¹ The 2006 action was assigned case number CV-06-2131, the case number for the proceedings at issue in the present appeal. Like the action at issue in Hun Es Tu Malade, the 2006 action involved a dispute as to the restrictions applicable to the property owned by Hun Es Tu Malade and the Slymans. However, numerous other persons intervened or were added as parties to the 2006 action, and eventually the circuit court certified a class in that action, with Tucker, Kruse, and Scheuer serving as class representatives. The members of the class were

"[t]he Owners of all real property located within [BSA], as of the date of Preliminary Approval, and all Interest Holders in such real property as of that date, and all lessees, grantees, successors and assigns of the foregoing, but excluding from this definition Defendants and each one of them."²

On May 1, 2008, the circuit court entered a final judgment in the 2006 action. The May 2008 judgment incorporated a settlement agreement, a copy of which was appended to the judgment as "Appendix A,"³ and dismissed the 2006 action, with prejudice, "[s]ubject to the provisions of the Final Order and Judgment." Based on the terms of the settlement agreement, it appears (1) that the parties who participated in Hun Es Tu Malade decided to compromise the rights accruing to them or duties imposed upon them, respectively, as a result of the judgment entered in that case and (2) that those parties and the members of the class agreed to a compromise as to disputes and potential disputes between them, specifically as to the existence of a common scheme of development for the properties composing BSA and the existence and enforceability of certain restrictive covenants as to those properties.

The May 2008 judgment states that "the Settlement is binding on all Plaintiffs, Class Members and Defendants, as well as each of their heirs, personal representatives, successors and assigns." The May 2008 judgment further states:

"5. Subject to the terms and conditions of the Settlement, the Plaintiffs, Defendants, Class Members (as well as each of their heirs, personal representatives, successors and assigns) and the Parties' counsel are hereby enjoined and ordered to perform their obligations under the Settlement, according to its terms and provisions.

"....

"8. All Plaintiffs, Class Members and Defendants (as well as each of their heirs, personal representatives, successors and assigns) are hereby permanently enjoined, precluded and barred from:

"....

"(e) engaging in or continuing any construction on, use of, or subdivision of any property in [BSA] that is inconsistent with the deed restrictions contained in the deed or chain of title to that property, except as authorized under the terms of this Final Order and Judgment and the Settlement appended hereto as Appendix A.

"....

"10. This Court decrees that all express restrictive covenants in the chains of title to the [BSA] properties are binding, valid and enforceable as written, and the Court finds that the same were imposed pursuant to a common scheme of development, except as to Lot 20 ... and other real properties for which Defendants and Class Members have made or hereafter make a valid Election of Commercial Status as provided by the terms of the Settlement and have paid or hereafter pay to Class Counsel the applicable Release Amount.

"....

"17. This Court reserves and maintains continuing exclusive jurisdiction over all matters relating to the administration, consummation, enforcement, modification, construction and interpretation of the Settlement, this Final Order and Judgment, and all matters relating to the entry and enforcement of this Final Order and Judgment.... This ruling shall not be construed as limiting actions by the Class brought before this Court to enforce provisions of the Settlement.

"....

"20. To effectuate the terms of the Settlement, this Court orders as follows:

"(a) The properties identified in Appendix B hereto[, which included parcel 49,] shall be and constitute the [BSA] neighborhood;

"(b) The properties identified in Appendix C hereto[, which did not include parcel 49,] shall be the only properties within [BSA] with the right to make an Election of Commercial Status, in accordance with the term of the Settlement appended hereto as Appendix A;

"(c) Except to the extent commercial use is permitted for properties under the terms of this Final Order and Judgment and the terms of the Settlement, restrictive covenants in the chains of title to the properties within [BSA] are confirmed and ratified, without change, and declared to in full force and effect.

"....

"....

"23. The Court further directs that the Clerk [of] the Court record this Final Order and Judgment in the Probate Office of Madison County, Alabama, and index this Final Order and Judgment in the chains of title to each of the properties listed in Appendix B."

The settlement agreement, which, as previously noted, was incorporated into the May 2008 judgment, defines the term "Beasley Spring Acres Neighborhood Improvement Trust" as

"the trust and trust account to be established by Plaintiffs on behalf of the Class as part of this Settlement, and into which Release Amounts shall be deposited, and which shall be operated for the purposes provided herein. The Trust Agreement pursuant to which this trust will be created is attached hereto as Exhibit ‘C.’ "

The settlement agreement further states that

"[t]he Beasley Spring Acres Neighborhood Trust shall be governed by a Trust Agreement which shall be approved by the Court. A copy of said Trust Agreement is attached as Exhibit ‘C’ hereto. The three (3) named Plaintiffs [Tucker, Kruse, and Scheuer], together with Mike Gunnells and Mark Wise, shall act as Trustees of the Beasley Spring Acres Neighborhood Trust in order to implement this Settlement and related Orders from the Court. The Trustees shall at all times be Owners of one or more parcels in [BSA]. If any Trustee shall become incapacitated or ineligible (including through an absence of ownership of property in [BSA] ), the remaining Trustees shall within thirty (30) days, elect a substitute, eligible Trustee by simple majority, without regard to objection by any party."⁴

Section X of the settlement agreement provides that the parties to the 2006 action

"shall seek and obtain from the Court a Final Approval Order, which shall include the following:

"....

"10. A permanent bar and injunction of all Class Members, Plaintiffs and Defendants from: ... (e) engaging in or continuing any construction on, use of, or subdivision of any property in [BSA] that is inconsistent with the deed restrictions contained in the deed or chain of title to that property, except as authorized in the Settlement or any Final Approval Order."

The settlement agreement further provides, in pertinent part:

"Following entry of the Final Approval Order, any Class Member, Defendant, or Plaintiff held by a court of competent jurisdiction to be in violation of this Settlement or the Final Approval Order shall be responsible for paying all court costs and the reasonable attorneys' fees of the party or parties seeking to enforce the provisions of this Settlement or Final

...